South Africa: Are You An Influencer? Then You May Well Need To Be A Follower …

We have written a few articles about the new advertising
regulatory landscape in South Africa, particularly around the fact
that the Advertising Regulatory Board
("ARB") has replaced the old Advertising
Standards Authority ("ASA"). The ARB
rulings that we have reported on appear to indicate that the
advertising regulatory regime is similar to what it was under the
ASA. This is good news as consistency breeds certainty for both
advertisers and consumers.

In this article, we look at a newish issue that we have only
skimmed in previous articles – influencers. An influencer is
broadly defined as "...a person with the ability to influence
potential buyers of a product or service by promoting or
recommending the items on social media...". In short, brand
owners pay influencers to make flattering statements about their
products on social media. Social media endorsement is an issue that
is closely linked to the wider issue of celebrity endorsement of
brands, which is a significant business.

The issue has become topical following an ARB case involving
Volvo.

In the Volvo matter, a complainant objected to an Instagram post
by a certain Kandy Kane (@kandykanemakeup) who has around 23 000
followers on Instagram, and around 14 000 subscribers to her
YouTube channel.

The complaint was essentially that Kandy Kane had said nice
things in her post about the Volvo she was driving, but she
hadn't really explained her relationship with the company.
Certainly, the post had not been identified as advertising. In
their response, Volvo said that the relationship between themselves
and Kandy Kane was "not one of financial
investment" but rather a "trade
exchange". Effectively, Volvo gave her a car to drive
and in return she had to tell her followers about the experience.
In order to resolve the matter, Volvo promised to ensure that the
relationship between themselves and Kandy Kane was clarified in
future posts.

What this complaint has done is shine a spotlight on certain
provisions of the ARB Code that many may be unaware of. These
provisions can be found in Appendix K to the ARB Code of Conduct.
Clause 3 of Appendix K is headed "Declaration of
Advertising" and it kicks off in general terms:
"To ensure full transparency advertisers are required to
disclose if content is part of a Social Media Advertising campaign
as opposed to purely Organic Social Media."

But, there are limitations. There's recognition of the fact
that many of us are social media-savvy. So, for example, clause 3.2
says that in the case of "promoted"
tweets on Twitter or "sponsored" posts
on Facebook, it will be obvious to people that this is advertising,
and the promoter and influencer will therefore not need to say
anything about this.

The provision goes on to say, "However, where Paid
Advertising may reasonably appear to the consumer to be the
unsolicited opinion of the influencer or platform, then the
material must be clearly identified as Paid Advertising through the
use of supported Social Media identifiers".

So, what about this "trade exchange"
thing mentioned by Volvo? Well, for that you need to go to clause 4
of Appendix K. This clause is headed "Declaration of Goods
Exchanges". It provides as follows: "To ensure
full transparency publishers and influencers are required to
disclose if they were provided (permanently or on loan) with goods
or services in return for media coverage (whether this is expressly
stated or not). ...influencers are expected to disclose their
relationship whether it is money or goods that has been
exchanged."

So, have we gone mad here in South Africa, all nanny-state? Not
really, we're simply following international trends. The issue
of social media influencing came up recently in the UK, in a case
involving a "mummy blogger" by the name of Sarah
Willox Knott. The blogger had breached the advertising rules by
promoting on Instagram an over-the-counter Sanofi sedative. Knott
had seemingly gone for the "But I'm no celebrity,
these rules surely only apply to the likes of David Beckham
(55-million followers)" defence. That failed. The advertising
authority found that in the UK anyone with more than 30 000 social
media followers is automatically considered a
"celebrity", and therefore someone who
is subject to advertising rules. The ruling has surprised many UK
users of social media, who were happy to learn that someone
considered them to be celebrities.

A following of 30 000 may sound huge to us here in
celebrity-lite South Africa, but it's interesting to look at
random Twitter numbers for a few South African celebrities: AB de
Villiers has 6.6-million followers, Julius Malema has 2.4-million,
Bonang Matheba has 3.4-million and Minnie Dlamini Jones has
3.2-million.

South Africans who may be surprised to learn that they are
celebrities (at least under a UK definition) include Prof Tim
Noakes (130 000 followers) and Toks van Der Linde (53 000
followers) For context, the top international Twitter account
belongs to Katy Perry, with 107-million followers, and the top
Instagrammer is Christiano Renaldo, with around 200-million
followers.

Brand owners who make use of social media influencer campaigns
are advised to take note of the ARB Regulations when designing
their campaigns. Influencers themselves will also need to take note
of wider advertising regulations, for instance, around prescription
medication under the Medicines and Related Substances Act, as the
penalties for contravening these regulations may be more serious
than by the ARB. In certain instances, there may even be criminal
liability.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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In recent years, an enormous change has undergone in the field of technology which raises a necessary question about human's ability to continue in protecting and promoting the right over the internet.

Advertising to children can be treated differently when compared to adults from jurisdiction to jurisdiction, therefore it

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